October 05, 2011
Ca. Court of Appeal Vacates $100,000 Non-Party Discovery Sanction Against Facebook -- In re J.G.
[Post by Venkat Balasubramani]
In re J.G., A128898; A129157 (Ca Ct. App.; Sept. 30, 2011)
Background: This involved a juvenile proceeding where J.G., a minor, was charged with the offenses of forcible sexual penetration and false imprisonment. During the proceedings, J.G.'s counsel served three subpoenas on Facebook, seeking information "relating to the victim's Facebook user account, including electronic messages sent to and from the account, and other data."
The first subpoena was issued on March 3, 2010 and demanded the production of documents within five days, or alternatively, Facebook's appearance at a court hearing on March 12. On March 17, Facebook served objections on J.G.'s counsel, and among other bases, Facebook argued that the Stored Communications Act precluded the production at issue. Facebook went back and forth with J.G.'s counsel, but did not appear at the scheduled hearing. At the hearing, J.G.'s counsel requested an order requiring Facebook's appearance in court on a new date: April 5, 2010.
On March 29, 2010 and April 7, 2010, the private investigator working for J.G.'s counsel served two additional subpoenas, the latter of which set a hearing date of April 13, 2010. While the first subpoena was signed by J.G.'s counsel, these two subpoenas were signed by the juvenile court commissioner. On April 9, 2010, Facebook served objections to these two subpoenas on counsel but did not file these objections with the court.
On April 12, 2010, Facebook's representatives discussed with J.G.'s counsel the possibility of having the victim execute a consent form. Facebook provided J.G.'s counsel the consent form, and counsel acknowledged receiving the form and advised Facebook: "You don't need to go to court tomorrow."
Facebook did not appear at the April 13 hearing. The investigator emailed a consent form purporting to be signed by the victim but it was actually signed by a representative of the district attorney's office. (??) The investigator further advised Facebook that there was a hearing and a further hearing on Facebook's "handling of the subpoenas" was set for April 20, 2010.
Prior to the April 20th hearing, Facebook's outside counsel arranged for a paralegal to contact the court. The court clerk advised that the hearing was scheduled to occur, but J.G.'s counsel advised Facebook's counsel that the hearing was cancelled. Facebook's counsel appeared at the April 20th hearing where he found out that the court was considering imposing a sanction on Facebook "for failing to comply with court orders relating to the subpoenas." Facebook's counsel advised that the Stored Communications Act restricted Facebook's ability to disclose the information in question. Following the hearing, the court imposed a sanction on Facebook in the amount of $100,000, payable to the Alameda County Superior Court. At the hearing, the court drops the gem of a line, that:
[the judge] saw in the [newspaper] two weeks ago that [Facebook's CEO] made three billion dollars in 19-- excuse me, 2009, three billion dollars . . . .
Shortly after the hearing, J.G.'s counsel provided Facebook with the signed waiver, Facebook produced the information in question, and the juvenile court released J.G. to home supervision. Facebook then moved to vacate the sanctions order.
Discussion: Facebook made three arguments for why the sanction should be vacated. The court rejects the first two, but agrees with the third.
Due Process/notice: Facebook argued that it did not have adequate notice of the court's intent to impose a sanction. The court disagrees, noting that Facebook's counsel appeared at and participated in the hearing. In fact:
counsel acknowledged that Facebook was aware of the court's displeasure with its compliance efforts, and [admitted] that 'it's entirely possible that some things may have fallen through the crack [sic].'
Even if there was some irregularity in the procedures, the court concluded that Facebook did not suffer any prejudice--it participated in the hearing fully and filed papers after the hearing.
Consent to commissioner acting as judge pro tempore: Facebook contended that it did not consent to the commissioner acting as judge pro tempore "for purposes of the sanctions proceedings." The court says Facebook's conduct at the sanctions hearing was implied consent.
Court's authority to impose sanctions: The final argument gets traction with the court. The court says that while the juvenile court has inherent authority to manage its proceedings, the juvenile court does not have inherent authority to impose punitive monetary sanctions. Several different statutes authorize the court to impose sanctions, but none of these come close to authorizing an award of $100,000. While a statute authorizing broader sanctions is on the books, it's limited to parties and not directed at the conduct of nonparty witnesses.
The court vacates the sanctions award as unauthorized and sends the matter back to juvenile court for further consideration in light of its opinion. The court does not reach the issue of whether Facebook "acted reasonably and in good faith," and it looks like the juvenile court is directed to not address this issue either. (The court's order is unclear on this last point.)
Service providers have to walk a fine line when responding to requests for communications. Although both lawsuits were dismissed, MySpace and Yahoo were both sued for disclosing information and communications in response to subpoenas that plaintiffs claimed did not fall under the specific exceptions in the Stored Communications Act. (See Sams v. Yahoo! and Hubbard v. Myspace.) Providers also have to worry about statutes such as the Video Privacy Protection Act and the newly-enacted California Reader Privacy Protection Act [pdf]. I haven't looked at it in detail, but my instinct is that the communications in this case could not be disclosed by Facebook, and it was correct in asserting that the Stored Communications Act barred disclosure. (The DOJ's Cybercrime division lays out the circumstances in which information can be disclosed by service providers. Even wading through this summary will make your head hurt.)
I'm sure Facebook is breathing a sigh of relief over having avoided the sanctions order, although it must not be looking forward to dealing with these discovery issues on an ongoing basis. Dealing with a subpoena in federal court is somewhat more straightforward than dealing with it in other fora, such as in a juvenile criminal proceeding.
It's unfortunate that the court did not discuss the merits of Facebook's objection based on the Stored Communications Act. Litigants also continue to grapple with the issue of how to get Facebook profile information in discovery. As far as recommendations for litigants trying to get Facebook-related information, I would familiarize yourself with what information is covered by the SCA and tailor your request for information accordingly. Second, whenever possible, I would try to seek the information from the litigant rather than from the network directly, and try to obtain a waiver, to the extent there are logistical issues preventing discovery of the information from the litigant. (Of course, courts have not resolved the issue of whether someone can be forced to execute a waiver, but I'm guessing we'll see some decisions on that soon enough.)